There is really only one takeaway from Acting City Solicitor Ebony Thompson’s statement that the city will appeal the decision by the Maryland Public Information Act Compliance Board ordering Baltimore’s Board of Ethics to turn over the unredacted list of donors to the Mosby 2021 Trust to the Baltimore Brew and Baltimore Sun:
Openness is not a high priority in the administration of Mayor Brandon Scott.
When it comes to a choice between transparency and political expediency, it seems that transparency doesn’t stand a chance at City Hall.
Withholding the names of the Mosby donors and the amounts given from the public serves no legitimate interest and needlessly deprives voters of information that the compliance board described as “relevant to understanding who might be seeking to curry favor with powerful elected officials.”
So why would the Scott administration challenge a state board’s order to release the list of donors?
Sources told The Brew and this writer that the appeal was not sought by the five-member Ethics Board.
Instead, the decision to seek judicial review of the order was made by the city Department of Law.
Thompson declined requests by the two news organizations to explain the decision to appeal. That is simply not acceptable, especially if the decision to appeal was indeed hers.
Her refusal to offer a reason for such a controversial decision reeks of arrogance.
No Legitimate Reason
I was critical of the Ethics Board’s original decision to release the list of donations with the names of the donors redacted.
But let’s assume for the moment that the board genuinely (albeit mistakenly) believed that donations to the Mosby trust constituted “information about the finances” of donors protected from disclosure by the Maryland Public Information Act (MPIA).
If so, it could argue that it was acting out of concern that it could be held civilly liable to the donors under the provision of the MPIA that prohibits a custodian from knowingly allowing inspection of a public record in violation of the MPIA.
That concern went away when the compliance board issued its decision.
The board is the administrative tribunal charged by state law with the responsibility for resolving disagreements over what may or may not be disclosed under the MPIA.
The Ethics Board, represented by the Department of Law, filed a memorandum in support of its belief that the donor list was protected from disclosure.
The compliance board issued an eight-page decision explaining why it concluded that the list of the donors and their donations must be disclosed.
Legal questions answered, disagreement resolved.
Whose Interests Are Served?
I have no doubt that this matter is being prolonged for reasons that have little to do with the law and a lot to do with hiding certain information, at least until after the primary elections in May 2024.
As to whose interests are being served by the appeal, there are two possibilities, and they are not mutually exclusive.
The first is the donors’ interests – even though the donors had no reason to believe that their donations to the Mosby 2021 Trust (a fund set up as a nonprofit “political organization” under Section 527 of the Internal Revenue Code) were confidential.
The express purpose of the trust was to prevent a federal tax investigation from negatively affecting the re-election campaigns of City Council President Nick Mosby and his wife, former State’s Attorney Marilyn Mosby.
The compliance board pointed out that donations to the trust were not the type of private financial information protected from disclosure under the MPIA and were in the nature of campaign contributions, which must be publicly reported.
Nick Mosby may not want the list revealed for reasons that won’t be known until we see it.
The second is Nick Mosby’s interests.
He may not want the list revealed for reasons that won’t be known until we see it.
And that places Thompson in a delicate position.
Up for Confirmation
This is hardly the first controversy during Thompson’s brief tenure.
She and Mayor Scott were forced to backtrack on his initial attempt to appoint her to the permanent position of city solicitor after The Brew reported that she didn’t satisfy the minimum requirement of 10 years of legal practice, which will not occur until December 2023.
(Thompson continued to insist that she met the requirement until The Brew published a second piece explaining the requirement.)
December is also when the one-year limit on her appointment as an acting department head expires.
So Scott will, in the near future, have to submit her nomination as permanent city solicitor to the City Council for confirmation.
And who heads the Council? Nick Mosby.
In the near future, Thompson’s nomination as permanent solicitor will come before the City Council headed by Nick Mosby.
Thompson found herself at odds with Mosby earlier this year because of another shaky legal opinion.
She stated that, despite boycotting a Board of Estimates meeting, Mosby and Comptroller Bill Henry counted toward the quorum when a vote was taken to approve an agreement – negotiated by Thompson and her predecessor, James Shea – that ceded substantial control over the city’s underground conduit system to the Baltimore Gas and Electric Co.
Mosby and his allies on the Council could make the process of confirming Thompson’s appointment to the position – with its $245,000 salary – very uncomfortable.
That’s what happened in March when Mosby’s allies initially rejected Faith Leach as Scott’s pick for city administrator.
Thompson wouldn’t be human if she didn’t prefer to have Mosby’s support.
It is reasonable to ask whether her judgment is clouded by a desire not to antagonize him.
Where’s the Mayor?
Thompson’s legal pushback on this donor name redaction issue is not, in precise terms, an “appeal.”
Technically, her office will be seeking “judicial review” of the decision of an administrative body empowered to adjudicate specified issues of law and facts.
The review involves filing a separate lawsuit asking a circuit court judge to overturn the decision on the grounds that it was arbitrary, capricious or in violation of law.
Under the city charter, the solicitor “shall have sole charge and direction of the preparation and trial of all suits, actions and proceedings of every kind to which the City, or any municipal officer or agency, shall be a party.”
Being in charge of the “preparation and trial of all suits” does not mean that Thompson is a free agent and gets to decide on her own which suits to file.
The following conversation between the mayor and Thompson should take place:
“Is this suit necessary to protect an important city interest?”
“Then, don’t file it.”
Do the Right Thing
Openness and transparency in government are essential to holding elected officials accountable for their actions.
Once again, the Scott administration has demonstrated that it places little value on those principles.
The Board of Ethics, meanwhile, is an independent entity. The city solicitor is its legal advisor, not its boss. Nor does it take orders from the mayor.
The Board of Ethics is an independent entity – the city solicitor is its legal advisor, not its boss.
The panel should release the unredacted list before Thompson files an appeal and make good on all of Scott’s talk about openness and transparency – even if he and his acting city solicitor won’t.
If voters can’t count on the Board of Ethics to take an ethical course of action, who can they count on?
• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at email@example.com and Twitter @dplymyer.